Thursday, August 12, 2010

Ukraine has to a degree restored political stability following the defeat and ousting of Victor Yushchenko. With this change has also come a change in political direction.

In 2008/9 Ukraine was in debate and discussion as to how Ukraine would be best served by implementing Constitutional reform.

There was at the time concern about the then pending Presidential election. One proposal was to remove power from the President and let Ukraine's head of state by a constitutional Two-thirds majority parliamentary vote as is the case in Estonia, Latvia and Moldavia.
The discussions and proposals were derailed primarily by the President Viktor Yushchenko who's on standing in Ukraine had collapsed from a high of 52% in 2004 to less then 5% (below below 2%).
Ukraine as a result retained the presidential system and spent over 200 million dollars in conducting a Presidential election which was held in January/February this year.

Soon after taking Office Ukraine's newly elected president Viktor Yanukovych set up implementing reforms and consolidating his power and hold over Ukraine. Many of the changes were welcomed and help restore balance and stability some have been controversial, the most being the deliberation and ruling of Ukraine's constitutional court that overturned Ukraine "Imperative mandate" provision in Ukraine's Constitution.

Yanukovych, having previously advocated a parliamentary system is now seeking to restore Presidential authority and has advocated the cancellation of the 2004 Constitutional Amendments.
According to Ukraine's Constitution the Constitution can only be amended with the support of two-thirds majority of the Parliament.

The only requirement for a referendum is when proposals are made to change the provision of Chapter I — "General Principles," Chapter III — "Elections. Referendum," and Chapter XIII — "Introducing Amendments to the Constitution of Ukraine" even then it still requires the support of two-thirds majority of the Parliament.

Unless Yanukovych can secure the support of the existing Parliament the only way he can legally amend the Constitution is to hold fresh Parliamentary election and campaign for support for his visions and polices during the parliamentary elections. The polls indicate the Yanukovych''s Party of Region will secure a majority of a new parliament in its own right but will still require the support of Serge Tigipko "Strong Ukraine" in order to secure a constitutional majority. Serge Tigipko has indicated that his vote is up for sale and he would support the restoration of Presidential authority.
If Ukraine adoption Yanukovych/Yushchenko's policy to restore Presidential authority it would be a backward step away from democracy and a way from Europe.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.